The second concern is that juries are biased against
wealthy defendants, including large corporations, and
act as a sort of “equalizer” in transferring monies from
wealthy defendants to poor or needy plaintiffs. There
is some evidence that awards tend to be higher in
cases that involve corporate defendants than in cases
with individual defendants. Other data suggest, how-
ever, that this finding may not be the result of the
defendant’s financial well-being. Rather, juries appar-
ently treat corporations differently than individual
defendants because they hold the former to a higher
standard than the latter (a “reasonable corporation”
standard) and reason that corporations are better posi-
tioned than individuals to anticipate harms and to
work to minimize or prevent them.
In general, these concerns may be related to the
fact that jurors have relatively little guidance from
their jury instructions about how to assess damages or
translate their judgments onto a monetary scale. The
laws of damages are relatively vague, leading some
critics to suggest that this situation allows jurors’
biases to operate freely and that extravagant and
unpredictable awards are the result. The problem is
especially acute in areas of the law that are still devel-
oping or that lack precision: sexual harassment
claims, libel actions, and cases involving intentional
infliction of emotional distress.
Some commentators have suggested that a solution
to the unbounded nature of jury decisions on damages is
to make judges responsible for determining punitive
damages. Judges already have occasion to award dam-
ages in bench trials and can control damage awards in
jury trials through the mechanisms of additur and remit-
titur, which allow them to add to or reduce damage
awards to the levels that they deem appropriate. In some
states, only judges can assess punitive damages. An
obvious question, then, is how punitive awards issued by
judges compare with those assessed by juries. Data sug-
gest that in most cases (particularly in cases with mod-
est punitive awards), juries’ and judges’ awards are of
similar size and variability and that both are based on
the actual and potential severity of harm to the plaintiff.Determining Jury Damage Awards
Psychologists have been especially interested in ana-
lyzing the factors that influence jurors’ decisions about
damage awards. In part, this reflects an objective of
much psycholegal research conducted to assess the
validity of legal assumptions about human behavior. In
the context of damage awards, the law assumes thatparticular factors will be considered by jurors in their
decisions about compensatory damages and that differ-
ent factors will be considered in decisions about puni-
tive damages. Psychologists have asked whether jurors
are able to compartmentalize their decision making in
this way.
The data on this topic are mixed; many studies sug-
gest that jury awards are influenced by variations in
legally relevant evidence, yet simulation studies show
that jurors occasionally consider information that is
theoretically unrelated to the decision at hand. For
example, though most studies show that evidence of a
defendant’s egregious conduct appropriately influences
punitive but not compensatory damage awards, a few
studies have found that it is sometimes considered
(inappropriately) by jurors in assessing compensation.
Similarly, though most studies have found that the
severity of the plaintiff’s injuries appropriately influ-
ences compensatory but not punitive damage awards, a
few studies have shown that jurors inappropriately fac-
tor injury severity into their judgments of punitive dam-
ages, at least in cases involving medical defendants.
Interestingly, jurors’ intuitions about what nor-
mally or typically occurs in various injury-producing
situations also influence their awards. Injuries that are
perceived as atypical (e.g., suffering a whiplash after
a fall) evoke greater sympathy in jurors than do typi-
cal injuries (e.g., suffering a broken bone in a fall) and
result in greater compensation.
There are many ways in which damages can be
assessed; some data suggest that jurors assimilate
their awards to the monetary figures provided by the
attorneys during the trial. The ad damnum is the
amount of money requested by the plaintiff; defense
attorneys sometimes counter this with their own sug-
gested amounts. These suggested figures (sometimes
referred to as “anchors”) are likely to influence jurors
because people tend to doubt their abilities to attach
monetary values to unquantifiable injuries. According
to the pioneering jury researcher David Broeder, the
ad damnum does “yeoman service as a kind of
damage jumping-off place for jurors” (Broeder, 1959,
p. 756). More recent studies have shown that, in gen-
eral, the higher the ad damnum,the larger the award.
There is an upper limit to this effect, however; damage
awards boomerang if the request is wildly excessive
and out of line with the evidence.
Another way in which jurors assess damages
involves evaluating separate components of a plain-
tiff’s request (e.g., lost wages, loss of future earning
capacity, loss of life’s pleasures), attaching monetaryDamage Awards——— 183D-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 183